German procedural law – who wins lawsuits or why is there so much lying in court?

Meet Dr. Thomas Schulte

Dr. Schulte ist Jurist und betreut als leitender Vertrauensanwalt mehrere große juristische Projekte (2007 Beitrag in Zeitschrift Capital: “große Erfahrung”) und gilt allgemein als Strategieberater für Erfolg durch das Internet (“Ihn fragt der Chef”, Handelsblatt 2012). Dr. Schulte gilt als einer der ältesten Anbieter für Reputation und Strategien (Handelsblatt, 2012).

Rechtsanwalt Dr. Schulte, Berlin
Dr. Thomas Schulte

Strategiebrater / Jurist

Who wins court cases? The clever lawyer with the law book in his hand? Or the one who has convincing „evidence“?

Does the outcome of trials depend on the conviction of the judge and not on legally perfect work? Many legal disputes are not about difficult interpretations of the law, but about the evidence. This realization is common knowledge in legal circles.

Testimony is important to the outcome of trials. The judge was not on the scene and must decide in the courtroom. The author still darkly remembers his religion teacher from school saying, „Children, nowhere is there so much lying as in court.“ We school children were shocked by the evil world of adults. Is the thesis of the religion teacher true?

Is it true? The concept of truth in German law must be defined.

What is the basis of the judicial decision? What must the judge investigate? What is the issue in the case?

There are two different ways for the court to approach an event retrospectively: the official investigation principle or the principle of bringing the case to court.

Official investigation

The official investigation principle means that the judge is called upon to clarify facts ex officio and to make inquiries and inquiries. The judge must clarify the facts that are relevant to the decision. This principle governs, for example, criminal proceedings (regulated here in Section 244(2) of the Code of Criminal Procedure). „Here the judge runs to the buffet and eats his way through all the drinks, sauces and food.“ The judge asks and asks and asks to find out the facts of the case.

Principle of Beibring

In civil litigation, the principle of Beibring applies. If someone wants the judge to decide, he must present and produce the facts. In the Civil Procedure Code, i.e. in disputes between citizens, this principle applies. This principle of submission states that in making a decision, the court takes into account the facts brought to the case by the parties. Here, the judge does not have to ask big questions, but must rely primarily on what the parties present. „The judge sits in the restaurant and eats the dish that the waiter serves the judge.“

Who is officially allowed to lie?

Example: Wuppertal, on 01.03.2019, the defendant or respondent goes into the public toilet at the town hall and smears the walls with felt pens. In terms of criminal law, this is damage to property. In the civil case, the owner of the facility wants compensation for the cleaning costs.

Unlike in criminal proceedings, where the defendant or accused can lie in his or her favor, in civil proceedings the parties must give the circumstances „completely and in accordance with the truth“ in accordance with Section 138 of the Code of Civil Procedure.

So in criminal proceedings, the defendant is allowed to lie and the judge must always keep asking. Judge: „Defendant, were you in the public toilet at the town hall on Monday, 01.03.2019 and smeared the walls there with a felt-tip pen?“ Defendant: „Nope, I can’t write, I don’t have a pen and I wear diapers. I wasn’t in the bathroom at the town hall!“ He is lying and that is officially allowed.

In civil proceedings, no one is allowed to lie. That would be the case if the defendant had been sued in the local court by the owner of the toilet. Then he would have to speak the truth. If he is sued for payment of 20 € cleaning costs? Whether a defendant speaks the truth? Requires that other sources of knowledge are used for the court.

So: defendants lie and parties in civil proceedings lie (although they are not allowed to).

Witnesses are important

Important sources of knowledge for courts are, in addition to documents, the visual inspection, the testimony of witnesses.

This is where the crux begins. The witness can rarely present the facts truthfully. Often it is because the events are far in the past. The events are presented as certain, although the witness can hardly remember them. Witnesses are rarely objective, err or lie.

The witness in civil proceedings is also admonished to be truthful and advised that he or she may have to swear to the testimony (Section 395(1) of the Code of Civil Procedure). How a judge evaluates the witness’s testimony is at his discretion (Section 286 of the Code of Civil Procedure). The judge decides whether the witness is credible and whether his testimony is credible. However, it is difficult for a judge to recognize when a witness is telling the truth and when he is lying.

Why is the lie not recognized?

Does the error begin in legal education? How are future judges prepared? During their studies, they work on a fully clarified set of facts, and during their legal training they question witnesses a few times?

No wonder that a judge cannot properly evaluate the behavior of the witness and the nature of the testimony. Are witnesses‘ testimonies wrongly evaluated?

Even if witnesses do not lie intentionally, human memory cannot be relied upon one hundred percent. Is the course of events reliably reconstructed? Much depends on the concentration on the course of events. Memory gaps occur, various details are omitted. This gives the judge a distorted picture of the decisive events.

The perceptive faculty varies from person to person. The perceptive faculty depends on the current state, age and concentration on certain events. Details are misperceived, for example, which could be of importance for the clarification of the facts. Witnesses may mishear, visually deceive, confuse people and their names. Let’s take a traffic accident as an example. This usually happens so quickly that a person can hardly grasp all the events correctly. Rather, he grasps individual parts of the event and from this he unconsciously forms the „overall event“.

Numerous researches have been carried out on this subject. They showed that events, directly interpreted by people, are often connected with other circumstances and only then stored. Later the events are brought back distorted.

False statements

Of course, false statements are prosecuted in court. The untruth must be proven. This proves to be problematic, especially if the testimony is the only evidence or it is testimony against testimony. The parties know this before the trial begins and can prepare themselves for it.

The problem is well known in legal circles, but a satisfactory solution has not yet been found. What would be a better solution?

Questioning techniques, whether the witness is lying?

Above all, it depends on the right questioning. Numerous researches in this field found out that asking about details of a certain event makes liars stall. Lying stories are built chronologically. The lying witness has been well trained on the specific questions about the facts in dispute. He wants to get rid of the prepared answers quickly. When asked unexpected questions about the weather or details about the defendant’s clothing, liars expose themselves.

Blank questions such as „what happened?“ are designed to get the witness to provide further, uninfluenced information. Trigger questions bring the respondent to a specific topic, e.g., „How did this conversation come about?“ First, the witness reports himself without being interrupted. Then the interviewee should continue with the additions. As long as possible, „W“ questions should be asked „Who?“, „How?“, „Where?“, „Why?“, „Why?“. The interrogator can tell if the truth is being told by answering situational questions, asking unexpected questions on incidental topics. Liars can answer these with difficulty; they do not have „real memories.“

A big mistake: asking negative questions. Lying is easier if the questions are answered only with „no“ or „yes“. Do not tie several questions together, this will confuse the witness and they will not give an extensive answer to all the questions. „If the questioning technique seems plausible, it is difficult even or especially for experienced lawyers or jurists to implement it practically. After all, every interview situation turns out differently and every interviewee reacts differently to certain questions.“

Evaluation: focus – investigation – assessment

According to the established case law of the Federal Supreme Court, the judge’s focus in the evaluation should be on determining the accuracy of the statements rather than the credibility of the person giving the testimony.
„Rather, it is a matter of assessing whether statements related to a specific event are accurate, i.e. correspond to an actual experience“ (BGH judgment of July 30, 1999 – 1 StR 618/98).
There are no persons who generally tell the truth or generally lie. This cannot be determined on the basis of professional or social reputation. The rule is not that the wife of the defendant lies in his favor.

An unequal relationship in litigation occurs when, for example, large firms and small firms face each other. Large companies with many employees can often call several witnesses, while the small business owners are already represented as a party in the lawsuit.

Is the judge guided in the examination by unconscious sympathy or antipathy to the witness? According to the standard work „Technique and Tactics of Interrogation“, judges Wendler and Hoffmann have been able to establish that sympathy, same origin, belonging to the same social class have an effect on the willingness to question statements less. Tests proved that a skinhead was asked more follow-up questions than a pretty young woman, with the same statement. Also, the statements of people from other cultural backgrounds are more often treated with skepticism.

Credibility – Assertion – Statements

The question of the motivation of the witness can be included in the considerations of the credibility of the witness (BGH in its decision of 30.07.1999, Ref.: 1 StR 618/98. However, these determinations should not be made across the board. The principle of free evaluation of evidence (§286 ZPO), which states that the court has to evaluate the evidence without fixed rules in each individual case, should not be forgotten!

As an indication that speaks for the truth of the statement, the self-incrimination is recognized in the jurisdiction. Deliberately false statements have a self-incriminating effect. Differently intentionally wrong testifying witnesses try to represent themselves favorably and positively.

Practitioners found that lying persons exaggerate in their presentation in order to be able to convince the judge in this way. A statement that sounds certain is believed more than one that sounds less certain.

In their book, judges Wendler and Hoffmann point out that lying witnesses have a limited ability to judge whether what they have described in court is sufficient to achieve the goal of the trial. That is why liars say more to „convince.“ Often, what is said „too little“ speaks to the truth. If it is too little for the judges and they demand an „exact description“, the liar will respond and „improve“ again. If the witness does not make these „additions“, the truth of the statement can be assumed.

Honest persons should be able to admit memory deficiencies in their statements, while false witnesses avoid this. Body language is a cognitive tool for judges. It is not the characteristics such as nervousness or avoidance of eye contact that are important. Rather, it is the unconscious signals that are crucial. However, interpreting body language is difficult in practice. Some behaviors can be interpreted ambiguously or have other reasons. A person may be internally agitated for other reasons.


„The bottom line is that witnesses do not need to testify alone, they need to be convincing.“ The witness must provide good, credible testimony. The lawyer can have as good legal knowledge as he may have here, in the end the probative value plays the decisive role and here the witness is the key figure.

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